Tuesday, March 23, 2010

NFL unhappy with accusations against Roethlisberger

We often point out the extreme and irremediable reputational harm often visited on those falsely accused of rape and sexual assault. The fact of the matter is, reputational harm from a false rape claim often bleeds over onto the falsely accused man's employer, and such employers typically don't tolerate that.

The New York Times reports that two time Super Bowl quarterback Ben Roethlisberger is in trouble with the NFL commissioner, Roger Goodell.

Let's recap for those who haven't followed this closely. Mr. Roethlisberger was sued civilly last year by a woman who claims he raped her. Recently, he was accused by a 20-year-old of sexually assaulting her, and that case is under investigation.

Mr. Goodell could have used the Roethlisberger incident as an occasion to keep his mouth shut until the investigation is concluded, and thereby affirm one of our nation's most cherished principles -- innocent until proven guilty -- but instead chose to make a comment that squarely placed the blame on someone who might just be a victim. Mr. Goodell, the Times reports, "made clear Monday that he was unhappy with the conduct of Steelers quarterback Ben Roethlisberger, who is under police investigation for an alleged sexual assault of a 20-year-old college student in a Georgia bar."

What "conduct" was that, Mr. Goodell? Being accused by a 20-year-old woman, about whom no one knows anything? Being under investigation? What exactly did Mr. Roethlisberger do that was illegal? What exactly did Mr. Roethlisberger do that was wrong?

Goodell continues: “We take the issue very seriously. We are concerned Ben continues to put himself in this position.”

What "position" was that, Mr. Goodell? Seriously?

The NFL, like similar business entities, has an interest in keeping its reputation from being sullied by the persons who are supposed to represent it. I get it. Honestly, I get it. Most workers in the United States are at-will employees who can be fired at any time, for any nondiscriminatory reason, or for no reason at all. It is for this reason that the falsely accused are usually fired at the mere whiff of an accusation, and not rehired. Employers typically don't want to take a chance that they are employing a rapist, no matter how remote the possibility.

Even if an employee has a contract restricting the company's right to terminate at-will, companies can reserve the right to discharge even non-at-will employees for conduct they find objectionable because of the reputational harm it engenders. "Morals clauses" and the like have long been standard fare for certain types of contracts, allowing the company to discharge someone for merely being involved in conduct that brings the company into public disrepute. Example: in Galaviz v. Post-Newsweek Stations, 2009 U.S. Dist. LEXIS 59603 (W.D. Texas 2009), a television field reporter in Texas was terminated, because, the court explained: ". . . [T]he undisputed evidence was that Plaintiff was involved in three incidents involving domestic disputes. At least two incidents received significant publicity in the local media. In news articles about the incidents, Plaintiff was identified as KSAT's police beat reporter. Plaintiff's journalistic ethics were questioned. Video images of Plaintiff being led in handcuffs into the magistrate's office were publicized. . . . Plaintiff was involved in situations or occurrences which brought Plaintiff into public disrepute or scandal. Grounds thus existed for terminating Plaintiff pursuant to the morals clause, and good cause existed for terminating Plaintiff prior to the expiration of the three-year term of the employment contract."

The fact is, even passive involvement -- involvement that is not your fault -- can legitimately get you fired, whether you are at-will, or have a written contract with a typical "morals" clause. It doesn't matter that you were just an unlucky person who found himself in the wrong place at the wrong time.

And isn't that the very definition of a false rape claim? As we have illustrated on this site in innumerable ways, innocent men and boys are often thrust into false rape situations that they could neither have foreseen nor prevented. What neither Mr. Goodell nor (heaven forbid) The New York Times bothered to point out is that there is a real possibility that Mr. Roethlisberger was falsely accused, and that there was nothing he could do to prevent it aside from not associating with women he doesn't know well without a video camera in operation or witnesses (preferably some women, because the police don't seem to believe the word of an accused man's male friends). It is possible that Mr. Roethlisberger is being targeted for pecuniary gain, as in "shake-down." His first accuser apparently never sought criminal charges but went straight for the pocketbook with a civil action. His second accuser did make a police report, but her family also hired two civil litigators.

I don't know what happened, and neither does Mr. Goodell. While we would hope that the NFL will stand back and not discipline someone who might be a victim, it is well to remember that the NFL is clearly an innocent victim, whether Mr. Roethlisberger is or not. The NFL had no control over Mr. Roethlisberger's actions, but its reputation is being sullied by the claim.

As false rape claims become more and more of a problem, it would be wonderful if no one's reputation was sullied -- the male accused or his employer -- unless and until there is a conviction and a lot more than "he said/she said" allegations. The reputational harm from a rape claim to both the accused and his employer arises because people, in the dark corners of their hearts, at least on some level, believe the accuser. That is the real problem here. Is it any wonder? For the past 30 years or more, we have been subjected to the incessant, mind-numbing tom-tom of the vile feminist lie that women don't lie about rape. Here, Mr. Roethlisberger has been accused twice. There is little chance of his reputation surviving this double-whammy intact.

But let us hope that Mr. Goodell exercises a wait-and-see restraint before disciplining Mr. Roethlisberger.